Tough Questions Must Be Asked as the Case Hinges on Questionable Eyewitness Identification and Ignores Evidence of Innocence
Authorities will need to answer for how it came to be that an apparently innocent man spent over 20 months in custody on kidnapping charges, stemming from a December 2016 crime in which a man attempted to grab a 12-year-old Davis girl in a Mace Ranch neighborhood.
The DA’s office finally conceded the case on Wednesday when Deputy DA Deanna Hays announced she had filed a motion to dismiss the charges, in light of evidence that now 29-year-old Sander Ian Findlay was elsewhere at the time of the crime.
In court, Ms. Hays conceded that Mr. Findlay’s cell phone records, along with his ignition-interlock device installed in his vehicle following a drunk driving conviction, placed both his phone and car near Lake Berryessa, far away from the scene of the alleged crime.
The People finally conceded there was strong evidence that “Mr. Findlay would be present with his car and his phone at that time.” She added that she did not believe a jury would find evidence beyond a reasonable doubt, despite an identification in a photo line up selecting Mr. Findlay.
Mr. Findlay had faced four felonies: attempted kidnapping for a lewd or lascivious act on a child, attempting kidnapping, assault with intent to commit sex crime on a minor and lewd or lascivious act upon a child under 14. He also faced three misdemeanors for annoying or molesting a child.
A big question now is how did this case go wrong?
According to court papers, on December 14, 2016, the Davis Police Department responded to Oceano Way in the area of Harper Junior High School in Davis for a report that a suspect had attempted to kidnap 12-year-old girl. The girl was walking southbound from Arena Drive when a person quickly jumped out in front of her. He reached out, grabbed her left arm and held her in place.
The suspect said nothing. She was able to break free, and stated that the suspect looked over his shoulder and ran southbound as she turned and ran in the opposite direction.
The girl provided a physical description of the person, identifying him as a white male approximately 25 years old. She also described the person as wearing “a black mask which covered the person’s nose and mouth.”
The girl was able to provide a “more detailed description about the pants, jacket/sweatshirt, shoes, and mask the assailant wore,” according to Sgt. Mike Munoz of the Davis Police Department.
Officer Michael Yu of the Davis Police Department testified that another Davis resident had described a male subject just west of her driveway on the greenbelt. She “described the male subject’s behavior as agitated, hunched over, and pacing back and forth on the greenbelt. She described the male subject as white, wearing a black hooded sweatshirt with the hood up, blonde hair sticking out from the face of the sweatshirt; however, she stated she could not see the face.”
Note, however, that this lady described him as having blonde hair while the girl thought he had short, black hair – and neither apparently saw his face.
The defendant was identified a few days later at La Playa Park along Oceano. One of the neighbors said that the defendant, which she described as a college student, “made her feel uncomfortable because he never made eye contact with her or spoke to her.”
She said he typically wore “a biking type outfit” and had a “black mask which covered his face, allowing her to only see his eyes.”
During a search of his home, “Detective Beckwith noted defendant’s physical appearance and clothing at that time, which was significant to him given (the victim’s) description she provided to the police. Detective Beckwith saw defendant had a black mask which Beckwith described as a ‘Gator’ mask. Detective Beckwith described this type of mask as being made of stretchy material which can be worn around the neck, but also stretch to pull over the face and head.”
Sgt. Munoz created a photographic lineup for the victim to view. The victim identified the defendant in a photo line, specifically stating, “it sort of looks like him.” (According to the papers, “Sergeant Munoz took paper and covered the area of the face on all six photographs (the victim) described her assailant had covered.)
This appears to be the sum total of the evidence used to arrest and detain Mr. Findlay from December 2016 until the present.
Mr. Findlay immediately claimed “that he was not at or near the victim’s location in Davis, CA when an attempted kidnapping occurred. Mr. Findlay claims that he was at or near Lake Berryessa which is more than 10 miles to the west of Davis, CA.”
Moreover, the defense became aware of this evidence as early as December 2017 and filed a motion to dismiss on December 26, 2017.
The defense, Deputy Public Defender John Sage hired Thomas Blackburn, an expert on cell phone diagnostics.
In a motion filed by Mr. Sage, he argued, “Using the data obtained from Mr. Findlay’s cell phone, Mr. Blackburn concludes that there is no cell phone evidence that can place Mr. Findlay’s cell phone at the location of the incident in Davis, California, on December 14,2016, between 3:30 PST and 4:00 PM PST. Mr. Blackburn went to cell tower locations in the areas around Davis, California, and Lake Berryessa. His conclusions are based on the towers that connected to Mr. Findlay’s cell phone and the compass positions the antennas face when connecting to the cell phone. Mr. Findlay was carrying his cell phone on December 14, 2016, between the hours of3:30 PST and 4:00 PM PST.”
Mr. Blackburn in his report concludes: “Based on the cell tower sector and azimuth information, the CDR Records do show that the defendant’s cell phone was somewhere on the west side of I-505 at or near an area around Lake Berryessa on December 14, 2016 between 3:00 PM PST and 4:30 PM PST.”
Despite this evidence, the DA, in opposing a motion to dismiss, argued that Mr. Findlay never made a statement about his whereabouts to police. They argued, “even if the court and the People were to adopt Mr. Blackburn’s conclusion about the cell phone data and location as true, those conclusions simply prove that a cell phone belonging to the defendant was ‘somewhere on the west side of I-505 at or near an area around Lake Berryessa on December 14, 2016 between 3:00 PM PST and 4:30 PM PST.’”
Ms. Hays argued, “This does not mean that the defendant was in that area; only that a cell phone belonging to him was in that area. Defendant wants to reIy solely upon this report, and defendant’s self-serving declaration provided only in support of his motion to dismiss, as evidence the People are prosecuting the wrong person.”
The deputy DA played up the circumstantial evidence surrounding the partial identification and Mr. Findlay’s admittedly odd behavior patterns, and plays down the cell phone data, which they argue “at best amounts to a potential alibi defense for defendant, however, such attempt at proffering an alibi does not negate the other compelling evidence in this case which supports defendant as the perpetrator.”
It would take another nearly 10 months in custody before the DA was forced to concede the weight of this alibi evidence.
The defense in February would attempt to get Mr. Findlay released on his own recognizance or a bail reduction. The defense noted that “while the instant felony case is charged as a serious case, it does have facts that would allow a jury a reasonable doubt as to defendant’s guilt.” The defense added, “Despite what seem to be very serious charges alleged, no one, child or adult, has suffered any physical injuries in the nature of cuts, bruises or scrapes. Only one child was touched, and that was on the arm. Defendant has also adamantly denied these charges.”
During the preliminary hearing the defense presented evidence of a third party they believe had a similar appearance and displayed a number of concerning behaviors. During the preliminary hearing, Detective Kim Walker said that she investigated this other man for masturbating in public in downtown Davis. He was described as an exhibitionist “who had a modus operandi of finding who he believed were attractive adult women in downtown Davis and he masturbated in public to get attention of the adult woman he found attractive.”
However, Detective Walker’s investigation never showed evidence that that man exposed himself near schools or to minor children. Detective Walker further testified he did not wear a black mask or black gloves when he masturbated in public.
The DA writes that “the court concluded that there is absolutely no relation of (the third party) to the crimes committed upon (the victim). In reaching this conclusion, the court found (the third party) had an alibi at the time the crimes were committed upon (the victim), that he’s an exhibitionist, and that he is not the type of man who hides behind bushes and chases young girls.”
Given the thinness of the evidence against Mr. Findlay, tough questions must be asked about how he was held in custody for 670 days, including a preliminary hearing and two defense motions that presented evidence that Mr. Findlay was not in the area at the time – evidence that only now the DA seemed to accept as valid.
—David M. Greenwald reporting